Thoughts of an activist lawyer

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China appears to be applying the law literally. The rule is where there is a dispute to territory, the claimant that can show a superior claim to the same, be it land or water, will be adjudged as having title thereto.

In land territory, the rule is that discovery alone gives rise to an inchoate title that must be perfected through effective occupation. The latter entails submission of evidence that the disputed testimony was subject to the exercise of both sovereignty and jurisdiction. Some evidence recognized by tribunals as proof of effective occupation would include the simple act of hoisting the flag in small and desolate island territories, and such acts as the grant of concessions, appending the disputed territory to a local government unit, and proof that institutions such as the courts or civil register were functioning in the disputed area.

This is why China has recently been attempting to bolster its claim to both the Kalayaan Group of islands and Panatag. Very recently, it created a new municipality, Sansha, that would exercise jurisdiction over the disputed islands in the West Philippine Sea. This is also why it has recently built a structure on yet another disputed island within our Kalayaan group of islands, the Subi Reef. The order to send a 30 boat armada of Chinese fishermen is also to bolster their claim that the waters have been the subject of acquired fishing rights by its nationals.

But will China’s recent acts actually result in its desired result of bolstering its territorial claims?

Not necessarily

Justice Holmes remarked that the life of the law is not logic; it has been experience. As early as the leading case of Palmas, an arbitration where the Americans lost Palmas Island to us, the lone arbitrator came out with a judicial technique, the “critical date” which has been adopted by other tribunals. Under this technique, international tribunals resolving territorial disputes will ignore all acts of claimants to territories after the “critical date”. This date, in turn, is the time when the controversy first arose between the parties. It is the moment in time when the parties have advanced conflicting claims of title over the disputed territory. It is when the parties officially joined the issues albeit out-of-court.

In the Palmas case, the lone arbitrator disregarded evidence offered by the parties after the critical date because human experience tell us that all such evidence would be self-serving. After a controversy has arisen, it is only reasonable for both parties to strengthen—rather than weaken—their respective claims. This is why after all the claimants to Kalayaan publicly advanced their claims to the islands, all of them took steps to bolster their respective claims of effective occupation over the islands.

When is the critical date to the Spratlys?

It would appear to vary depending on which state is making the claim. France claimed the islands in 1933 . This was met with protests from China, Japan, and even Great Britain. All those that protested the claim of France hence articulated their own basis for title to the islands. It would seem that for China and Vietnam, the latter as the successor state of France, the critical date would be 1933. But for the Philippines, the critical date would be in the 1950s after Thomas Cloma claimed discovery over the islands that he described as “res nullius”—belonging to no one. The critical date for both Malaysia and Brunei, since their claims are anchored only on the regime of the continental shelf and the exclusive economic zone under the UNCLOS, would be in 1984, the year when the convention took effect.

Of course it is still important for the Philippines to repeatedly protest all these subsequent acts of effective occupation. Failure to protest may lead to estoppel. The international community recognizes international law as such because it forms part of a normative system. Here, its normative content is the preservation of international peace and security. The concept of “critical date” exists precisely to minimize the threat or the actual use of force. Were it not for this technique, claimant countries to disputed territory may resort to shooting whenever a claimant takes steps to bolster its claim after the “critical date.” Because of this technique, claimants are assured that acts that transpired after the controversy may mean nothing in the resolution of the controversy and hence need not result in a gunfight.

I am concerned that many of our countrymen, including those in the media, appear to be agitated with news of what China has been doing lately. Fortunately, we need not lose our cool since all these may be for naught.